Constitutional Theory is Good for Nothing?

Bob Sheridan bobsheridan at
Mon Oct 10 09:46:47 PDT 2005

Tepker, Rick wrote:

"...In various statements, Ms. Miers and the President have repeated 
“strict construction” as the shibboleth signaling the judicially correct 
attitude for a justice. The phrase means many different things to many 
different people.

Why shouldn’t she be expected to define the term, explain the term and 
apply the term to some basic cases of constitutional history? I do not 
think it sexist or elitist to expect a nominee to be reasonably skilled 
in public discussion of these concepts.

If anything, I’m more worried that it is too low a standard, rather than 
too high, too harsh or too unfair."


It's precisely because "strict construction" IS a shibboleth that we 
shouldn't expect a public figure to define it. It's a political slogan 
that stands for an ocean of attitude covering a catastrophe of caverns. 
It's a rallying cry for getting out the vote, a means of encouraging 
donations, a flag to uphold. When the president, a Supreme Court 
justice, or a soldier swears to defend the Constitution, we are careful 
NOT to ask the person to explain just which understanding of the 
Constitution will be defended.

Not knowing anything about Harriet Miers other than what I've read here 
and elsewhere, my guess is that she's a competent lawyer who hitched her 
wagon to a shooting star. I don't see anything wrong with that. I 
suspect I'm seeing a lot of sour grapes from commentators. As a team 
player, I'd expect her to follow the team playbook until it gives out, 
that is, for issues not in the book whose outcomes thus aren't 
pre-ordained. What she's likely to find is that new issues can be argued 
plausibly either way, even under the old team rules. Then she's going to 
be forced to choose. The result will be called new law, or legislating, 
although she may not see it that way and deny that she's being 'activist.'

In the final analysis, the label hanging will mean little, as we expect 
SC justices to be immune to catcalls.


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